Breathalyser

[zarrel40]

What is the name of your state (only U.S. law)? Oregon

If I am walking down the street and a police officer stops me and asks me if I am drinking and I tell them no, then they ask me to submit to a breathalyser, what are the consequences if I say no?

[HighwayMan]

Sounds kind of far out. Did this happen to you?

Most (probably all now) states have implied consent laws requiring you to submit to a chemical test for alcohol if you're driving and providing penalties such as suspension/revocation for a refusal.

However, that's driving. I have never heard of a situation like you describe and I would say that if you refuse they can't do anything to you, unless there is something specific in Oregon law which I am not aware of.

Why don't you elaborate on the circumstances...

[acmb05]

Originally Posted by HighwayMan

Sounds kind of far out. Did this happen to you?

Most (probably all now) states have implied consent laws requiring you to submit to a chemical test for alcohol if you're driving and providing penalties such as suspension/revocation for a refusal.

This is currently working its way through the court system in Oregon. Basically what the lower court ruled is that when they read you the implied-consent law you are being coerced and in conflict with the Oregon Constitution's Unlawful Search and Seizure. The Oregon supreme court is set to hear the case.

Originally Posted by HighwayMan

However, that's driving. I have never heard of a situation like you describe and I would say that if you refuse they can't do anything to you, unless there is something specific in Oregon law which I am not aware of.

Why don't you elaborate on the circumstances...

How about arrest you for being drunk in public.

[HighwayMan]

Originally Posted by acmb05

How about arrest you for being drunk in public.

For refusing a breath test? I don't think so.

If I was making an arrest for DIP then I wouldn't need a chemical test to establish probable cause.

[CavemanLawyer]

The case you are talking about is State v. Machuca.
[url=http://www.publications.ojd.state.or.us/A133362.htm]Oregon Judicial Department Appellate Court Opinions[/url]

The ruling of the court seems to be in conflict with the rulings of just about every other state in the country. The majority basically just says that warning a suspect about the statutory consequences of a refusal is coercive, even though the statute specifically directs the officer to do just that. The ruling doesn't come out and say that the implied consent law should be unconstitutional, yet under their analysis, there'd be no way to actually enforce the statute without violating the state's constitution. The ridiculous thing is that they rely on a plurality state supreme court opinion (weak in and of itself) to determine essentially that implied consent is unconstitutional, yet that opinion still recognizes the constitutionality of the statute! It looks to me like the Court painted itself into a corner with its analysis and are basically just legislating from the bench. There is no question this will be a hotly contested appeal.

But... I don't see what this case has to do with the fact pattern you wrote though since Oregon's implied consent laws (probably every state's for that matter) only applies to offenses involving the operation of vehicles.

The bottom line is that taking your breath or blood is considered a search unless it is done for medical purposes separate from the criminal investigation. You have a right to refuse any search unless an exception applies, and the refusal of a search cannot be considered in determining probable cause for arrest. You cannot be punished for exercising a Constitutional right. The officer is not supposed to consider your refusal as "suspicious behavior" or anything of the like.

So if you refuse a chemical test then that should not even factor into the equation. The officer either has probable cause to arrest you for public intoxication based on what he/she has observed or he/she doesn't. At most I'd say that consenting to a chemical test and "passing" gives you a better chance of not being charged. If you refuse the test then you are simply giving the officer less information upon which to make his/her determination. But if the officer doesn't have probable cause to arrest, doesn't have probable cause to obtain a warrant for the chemical test, and you refuse the test...then he/she has to let you go. Anything else would likely be considered an unlawful arrest.

[CdwJava]

Perhaps we should throw another element into the mix ...

zarrel40, are you under 21? Are you under 18? Is it possible that you smelled of alcohol?

I do not know about OR, but I recall that at least one state that did have a law concerning juveniles and drinking and mandated that they take a breath test if there was good cause to believe the minor had been drinking. As I recall it was a hot button issue and being challenged. Perhaps OR has a similar statute? I haven't heard of it, but ... maybe?

If no special law exists, there should be no penalty simply for refusing to blow. But, if the officer has probable cause for any other violation he can certainly make an arrest based upon that.

- Carl